when I first asked my teacher whether it was ok to talk about ethics and mindfulness, he laughed and said, all of mindfulness is ethics!
Fair.
And, it’s interesting to look at the five biggies, or precepts: not causing harm, not stealing, not misusing sexuality, not communicating unwisely, not using intoxicants to cloud the mind.
These can feel like big asks to me anyway, when I take a really close look. And yet aren't the lawyers the standard-bearers? Don’t folks rely on us to lift up the ethics of society?
Maybe there’s too much cynicism in the world right now to think about it that way, but it seems to me that fundamentally, the answer is “yes.”
And so what about practicing law with these five precepts in mind? Let's dissect, but I do think it has the potential to change our own lives, and maybe even our world.
when I first asked my teacher whether it was ok to talk about ethics and mindfulness, he laughed and said, all of mindfulness is ethics!
Fair.
And, it’s interesting to look at the five biggies, or precepts: not causing harm, not stealing, not misusing sexuality, not communicating unwisely, not using intoxicants to cloud the mind.
These can feel like big asks to me anyway, when I take a really close look. And yet aren't the lawyers the standard-bearers? Don’t folks rely on us to lift up the ethics of society?
Maybe there’s too much cynicism in the world right now to think about it that way, but it seems to me that fundamentally, the answer is “yes.”
And so what about practicing law with these five precepts in mind? Let's dissect, but I do think it has the potential to change our own lives, and maybe even our world.
Wake Up Call #362: The “Real” Rules of Ethics
Hi everyone, it’s Judi Cohen and this is Wake Up Call 362. We’re exploring the second paramita, or perfection, which is the perfection of sila, or ethics.
As I mentioned last time, the perfection of ethics is based – or at least in its most concrete formulation, is based – on ten precepts, or rules, “…intended to regulate behavior or thought.”
Five of the precepts are for monastics: not eating after midday, not attending entertainment, not wearing jewelry or perfume, not sleeping in luxurious beds, and not handling money. But five are for lay people and they’re a little bit similar to legal ethics: don’t cause harm, don’t steal, don’t engage in inappropriate sexuality, don’t communicate unwisely, and don’t use intoxicants to cloud the mind.
To me the five precepts for lay people seem clear. But digging in, there can be a lot of nuance – always assuming we’re not going with Original Intent in the sense of “sila” that might have applied 2,600 years ago, and instead we’re exploring how the precepts could work in our times, and in our profession.
So first, not causing harming. I’ve mentioned here that I used to give lawyers a bye and say that because of the adversary system, we should only have to aspire to do no “unnecessary” harm. And then a friend and long-time Zen student said, “Why should lawyers only have to do no ‘unnecessary’ harm?” So let’s go with “no harm” and see what that could even look like.
If it’s “do no harm” in terms of our work, I think it’s tough. In an adversary system, how do we do no harm and someone loses and they don’t feel harmed? How does a prosecutor put someone in jail and not harm them? How can a divorce be settled without causing harm, or a corporate matter be litigated without someone experiencing harm? I think these are tough questions.
But there are other ways we can perfect sila in terms of doing no harm. We can not inflict physical harm as in, not throw any actual punches. Most of us can probably sign onto that, at least at work. We can also not inflict emotional harm: we can stop yelling, being snarky, being derisive, being impatient (which is a whole paramita). But this in & of itself – not inflicting emotional harm – this could really be transformative in the profession, don’t you think? We can not inflict spiritual harm and one way of keeping track of that is not demanding oppressive workloads from others or from ourselves, so that we all have time to sit in the park or drive to the beach or mountains or river and relax, be in nature…or we have time for more formal spiritual practice. Because in my experience, when the workload gets too heavy, or stays heavy for a long time, spiritual connection can be the first thing to go.
Still looking at non-harming, we can heal our own oppression, bias, and hatred – even in their subtlest forms. A lifetime of work, don’t you think?
We can vow to not do harm to the earth – she could really use some non-harming these days, taking it even as far as declining to represent clients who are engaged in activities that harm the earth. That would be radical non-harming.
So there are ways to engage in non-harming. And, doing our jobs, the jobs of advocates, of adversaries, may in & of itself cause some harm.
There’s not stealing – that sounds easy. It’s also a legal ethics rule of course. And, one modern interpretation of not stealing is not taking more than we need. I’m saying this sitting at our little place at Lake Tahoe and we also have our place in Sonoma. I don’t need all of this. Maybe you have more than you need, maybe you have just enough, maybe you have not enough. If we have more than we need, can we at least be mindful of that, and increase our practice of dana-paramita, of generosity? Or consider what Thich Naht Hanh says about non-harming: he asks us to consider this precept in terms of preventing others from enriching themselves from human suffering and the suffering of other species and the earth. That could be an interesting internal conversation, or conversation with a client.
Misusing sexuality is another precept that sounds clear and easy to keep: don’t cheat on or harm your partner. But what about not misusing sexuality by taking a biased or oppressive approach towards those whose gender or sexual orientation is different from ours or from what we think it should be? Or what about not harassing anyone or participating in or even allowing a power imbalance among the sexes? Or not supporting or perpetuating the patriarchy, even though it’s the water we swim in, and so invisible? I was talking with my brother about a project and he started talking over me and telling me how to do something he knows I know how to do and then he stopped and asked, pretty sheepishly, “Was that mansplaining,” and I said yeah and we laughed, and he also apologized – can we pay that level of attention to not misusing sexuality?
Not communicating unwisely – that’s important for us, right? So many times I’ve said something in my “lawyer’s voice,” without kindness or “knowing I was right”? Maybe you’ve done that…. I like “thinking cap” as an acronym for wise communication (it’s really just think-cap but “thinking cap” sounds better): when speaking, writing, and posting, is what I’m saying T-true? H-helpful, I-interconnected, N-necessary, and K-kind? And when I’m listening, am I being C-curious, A-attentive, and P-patient?
And last but not least, not using intoxicants to cloud the mind: maybe the trickiest one of all. One way to think of it is alcohol, drugs - for some folks this is the hardest precept – we have terrible statistics in the profession, and for others, it’s the easiest.
But there are many other intoxicants. Netflix and Prime and YouTube and Facebook and Instagram and TicToc and even the news: there are plenty of times I start scrolling to to feel better or to distract myself – for intoxication, really.
And email: I can waste serious time scrolling through email. Work: definitely can be an intoxicant. Marathons, yoga, even meditation: we can ask ourselves what our intention is, and make sure we’re not engaging in these things as intoxicants, as a way of getting away, or even turning away, from our lives.
Sila-paramita – the perfection of ethics – plenty to contemplate.
Let’s sit.
[Play the John Lennon Imagine video at the end of the Paramitas – whenever that is! (It’s bookmarked under Music.)]
Mindfulness and ethics:
when I first asked my teacher whether it was ok to
talk about ethics and mindfulness,
he laughed and said,
all of mindfulness is ethics!
Fair.
And, it’s interesting to look at the five biggies, or precepts:
not causing harm, not stealing, not misusing sexuality,
not communicating unwisely, not using intoxicants to cloud the mind.
These can feel like big asks to me anyway,
when I take a really close look.
And yet aren't the lawyers the standard-bearers?
Don’t folks rely on us to lift up the ethics of society?
Maybe there’s too much cynicism in the world right now
to think about it that way,
but it seems to me that fundamentally, the answer is “yes.”
And so what about practicing law with these five precepts in mind?
Let's dissect, but I do think
it has the potential to change our own lives,
and maybe even our world.